The defendants have moved before this court to dismiss an indictment charging them with the crime of conspiracy.

The indictment charges that the defendants conspired between March 21, 1951 and February 28, 1954 "to commit certain crimes and unlawful acts." It charges that the defendant Martin I. Falk, president of Aircraft Supplies, Inc., and one Charles H. Coburn (now deceased), vice-president of the defendant corporation, entered into an agreement with the defendant Jesse L. Bailey to pay secret commissions to the latter without the knowledge and consent of Bailey's employer, American Airlines, Inc., in return for which Bailey gave them information of the amounts of bids submitted to his employer by competing supply vendors, enabling Aircraft Supplies, Inc. to underbid such competitors.

The overt acts charged in the indictment allege that during said period Bailey was paid secret commissions of $46,333.79, and that as a result of information concerning

The defendants contend (1) that this court lacks jurisdiction, (2) the offense is a violation of the Disorderly Persons Act and is not a crime, and (3) the defendant corporation and Falk have statutory immunity from prosecution.

The State contends (1) that this court has jurisdiction, (2) the offense charged is common law conspiracy under N.J.S. 2 A:85-1, and (3) the alleged immunity is not applicable.

In support of their motion the defendants allege that the offense charged in the indictment is the same offense proscribed by N.J.S. 2 A:170-88, which is not a crime but a violation of the Disorderly Persons Act. Said statute provides:

"Any person who gives, offers or promises any gift or gratuity to any employee without the knowledge and consent of his employer, and with intent to influence his action with relation to his employer's business, and any employee who, without the knowledge and consent of his employer, requests or accepts any gift or gratuity, or any promise to make a gift or to do any act beneficial to himself, under an agreement or understanding that he shall act in any particular manner to his employer's business, is a disorderly person."

The offense charged under N.J.S. 2 A:170-88 prior to January 1, 1952 was a misdemeanor under R.S. 2:114-11. It was downgraded by the Legislature to become a violation of the Disorderly Persons Act on said date.

The defendants contend that by downgrading the offense such legislative action bars prosecution of the offense under the statute authorizing prosecution of common law conspiracy under N.J.S. 2 A:85-1 on which the present indictment is based. They point out that the "omnibus" statute, N.J.S. 2 A:85-1, provides that:

"* * * all other offenses of an indictable nature at common law, and not otherwise expressly provided for by statute , are misdemeanors." (Italics mine.)

It is their contention that since the Legislature has "otherwise expressly provided for" the prosecution of the offense under section 88 of the Disorderly Persons Act, the State cannot upgrade the offense to a misdemeanor by prosecuting the same as a conspiracy. It is noted that the indictment does not charge "statutory conspiracy" under N.J.S. 2 A:98-1, but does charge common law conspiracy under N.J.S. 2 A:85-1.

It is conceded that common law conspiracy was not preempted by the enactment of the statute relating to the crime of conspiracy. It remains a misdemeanor under N.J.S. 2 A:85-1. State v. Loog , 13 N.J. Misc. 536 (Sup. Ct. 1935), affirmed State v. Henry , 117 N.J.L. 442 (E. & A. 1937); State v. O'Brien , 136 N.J.L. 118 (Sup. Ct. 1947).

"Conspiracy, at common law, is a confederacy of two or more persons wrongfully to prejudice another in his property, person, or character, or to injure public trade, or to affect public health, or to violate public policy, to obstruct public justice, or to do any act in itself illegal. 4 Black Com. 136, Chitty's note (31); 2 Russ. on Crimes 553."

This court cannot agree with the general principle that where the overt act charged in an indictment for common law conspiracy has been downgraded by the Legislature from the status of a crime to one of a violation of the Disorderly Persons Act, the accused cannot be prosecuted under N.J.S. 2 A:85-1.

It is the corrupt agreement between the parties, the conspiracy itself, which constitutes the crime. The overt act set up in an indictment may or may not be in itself criminal; the conspiracy is the crime, and the overt acts may be relatively insignificant. State v. O'Brien , 136 N.J.L. 118, 123 (Sup. Ct. 1947). See ...

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